Tashreeka Oliver NO v MEC for Health: Western Cape Provincial Department of Health

The deceased, Mrs Wareldiah Oliver, instituted an action against the MEC for Health, Western Cape, alleging medical negligence by hospital staff that resulted in the amputation of her leg. She claimed special damages for past and future medical expenses and loss of earnings, as well as general damages for pain and suffering and loss of amenities of life. After pleadings had closed and litis contestatio had been achieved in January 2016, she amended her particulars of claim in October 2017 by substantially increasing the quantum of future medical expenses and introducing new alleged sequelae. She died five days after the amendment, before the defendant responded. Her executor, Ms Tashreeka Oliver, was substituted as plaintiff. A dispute arose as to whether the amendment re-opened litis contestatio and whether the claim for general damages was transmissible to the deceased’s estate.

The appeal was upheld with no order as to costs. The high court’s order was set aside and replaced with an order granting the plaintiff leave to further amend the particulars of claim within 30 days, with costs reserved. The matter was remitted to the high court to determine, on properly pleaded facts, whether the common law rule on the non-transmissibility of general damages after litis contestatio should be developed.

The judgment clarifies that special and general damages in personal injury claims constitute a single indivisible cause of action and that material amendments after pleadings have closed re-open litis contestatio. It reaffirms the strict common law rule that claims for general damages are not transmissible if the claimant dies before litis contestatio, while also providing important guidance on the procedural and evidential requirements for developing the common law under the Constitution.